[CPWG] Discussion of Capture is and always has been a legitimate topic at ICANN (was Re: ICANN Code of Conduct)

Evan Leibovitch evan at telly.org
Thu May 2 08:23:11 UTC 2019

*TL;DR version:*

   Q: Are capture and conflict of interest issues in ICANN fair game to
talk about?
   A: Well, sure, but norms on these issues in the outside world are
gleefully ignored within ICANN. So good luck with your conversation.

*Long version:*

Well, this has been ... interesting.

First, a few disclosures:

   - I have been involved in the Internet Society though many vectors. I
   co-started a chapter, was the primary drafter of its most recent chapters
   advisory council charter, and I have been recruited by ISOC staff to help
   impartially resolve disputes in other chapters. All of this has been done
   voluntarily. My involvement at this moment is negligible.

   - I own or manage about a dozen domains, none of which are being held
   for resale.

   - While on ALAC I "benefited" from travel subsidy that nowhere near
   covered the value of my time participating at ICANN conferences. I have
   also gone to two ICANN meetings at my own expense, and I am one of only two
   people I know (besides Sebastien) who has hosted ALAC social events at
   their home.

   - Codes of conduct and conflicts of interest are a thing to me. I created
   the code currently in use <https://www.lpi.org/conduct> at my nonprofit
   employer which addresses multiple contexts, and is an amalgam of a number
   of other codes.

   - Not only do I agree that the dot-org price cap should be lifted as a
   significant matter of public interest, I advocate a sharp increase of the
   fees that ICANN charges all registries for domains. I'd actually like to
   set a minimum fee rather than a maximum. More details on the rationale can
   come later, but this discussion seems well beyond the specifics of that
   public comment issue.

Now to a few points:

   1. Conflict of interest, in a governance context, has a more specific
   definition than simply one's having conflicting interests (by being part of
   multiple constituencies, perhaps). It means that someone's vote, or
   advocated point of view, is driven by potential gain in either money or
   power. If we want to strictly apply CofI principles, we find that Internet
   Society chapters who are ALSs and whose members are not ISOC staff do *not*
   have a direct conflict of interest, because their policy viewpoints would
   not affect their income and power. Conversely, NGOs who protest the lifting
   of the .ORG price cap are absolutely conflicted because they are defending
   their own ability to pay as little as possible for domains. Their actions
   are those of registrants, not end-users, and the issue of price caps is one
   of those few where the interests of registrants and end users can be very,
   very different.

   2. I experience hand-wringing denouncements of conflict-of-interest
   within ICANN with the sense of creepy entertainment that I get watching an
   episode of Black Mirror. ICANN was built on a foundation of widespread and
   openly visible conflict of interest and remains that way to this
day. *Nothing
   is off-limits so long as you declare*. Quoting other constituencies'
   harping about CofI within ALAC betrays a dangerous ignorance of both
   history and culture. From the day At-Large began as an alternative to
   direct public elections of the ICANN Board there has been a constant and
   predictable effort within most of ICANN, including certain senior staff, to
   de-legitimize us. The goal of that has been to preempt anything we might
   say that dare disrupt the cozy compact between domain buyers and domain
   sellers. Sadly, over the years ALAC has been so timid and self-censoring
   that such belittling campaigns have proven largely unnecessary.

   3. As for capture, I struggle to see it within ALAC. Despite a list of
   flaws that I could take a book to detail, ALAC and the other ACs are by far
   the least-corrupted components of ICANN. Elections tend to be robust, and
   the NomCom factor works to reduce cronyism. If anything, ALAC suffers from
   the same ills as many democratic entities in that often the politically
   sociable will win over the duller policy wonks, and ALAC has traditionally
   been wonk-poor. I myself once believed that there was ISOC chapter capture
   until I saw just how freaking diverse the chapters are; considering them a
   cohesive interest bloc within At-Large, once one looks at the reality, is
   laughable. Just because a group has reached a conclusion with which one
   disagrees doesn't make it "captured" without further evidence of

   4. Of *course* complaints are legit that a poorly-resourced 25-person
   ALAC/RALO council can't possibly do a fantastic job representing "the
   billions". Yet it does sorta OK with what it's given, considering that it
   has no discretionary budget; ALAC-approved projects have been rejected by
   ICANN without reason. I have always wished that ALAC got more involved in
   public polling and education to better know with confidence what the global
   public wants from ICANN, but (a) doing that is expensive and (b) I'm quite
   sure ICANN really doesn't want to know this information. I also note that
   ALAC is the only constituency within ICANN that has forced geographic

   5. Small nit that I couldn't let pass, even though the point is
   irrelevant: The assertion that "*nothing would stop ISOC/PIR from
   selling out to private equity*" is bullshit. Conversion of a nonprofit
   body to a for-profit is impossible or horribly difficult in most
   jurisdictions, and even transfer of assets would quickly come under the
   disapproving eye of regulators. I've seen some attempts first-hand and they
   didn't end well.

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